MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 August 2002
	DOCKET NUMBER:   AR2002066768

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Regan K. Smith		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his debt to the Government be cancelled and the application of his $600.00 tax refund toward that debt be refunded.

APPLICANT STATES:  That his debt is an error because the judge at his general court-martial did not order restitution.

EVIDENCE OF RECORD:  The applicant's military records show:

He was a Regular Army soldier from 28 December 1993 until he was separated with a Bad Conduct Discharge on 19 March 1999.  

The applicant was assigned to C Company, 2nd Battalion, 502nd Infantry Regiment, 101st Airborne Division, Fort Campbell, Kentucky.  In late 1995, he was notified that he was on levy to go to Korea and he expressed a desire not to go.  In January 1996, he began clearing his unit on permanent change of station (PCS) orders to Korea.  The applicant did not properly sign out of his unit and was absent without leave (AWOL) from 29 January 1996 until on or about 28 October 1996 when he voluntarily returned to military control.  His unit was performing field duty during January 1996 and was unaware of the applicant's AWOL status until an undetermined later date.  The applicant continued to receive pay and allowances while in an AWOL status because his unit did not initiate the necessary paperwork to list him as AWOL until October 1996.

Upon his return to military control, court-martial charges were preferred against the applicant for desertion and larceny of military property, to wit:  $7,430.00 in military pay and allowances.  Before a general-court-martial on 18 February 1997, the applicant pleaded not guilty to both charges, but was found guilty of AWOL and larceny and sentenced to reduction to private (E-1), forfeiture of all pay and allowances, confinement for 17 months, and a Bad Conduct Discharge.  He was transferred to the Regional Corrections Facility at Fort Knox, Kentucky, for service of his sentence to confinement.  Upon completion of his sentence, he was placed on excess leave pending completion of his appellate review and execution of his BCD.  The United States Army Court of Criminal Appeals affirmed his conviction on 10 December 1997 and his BCD was executed on 19 March 1999.  The applicant had 3 years, 9 months, and 16 days of creditable active Federal service and 787 days of lost time due to AWOL and military confinement [Only the applicant's time spent in confinement is recorded on his DD Form 214, Certificate of Release or Discharge From Active Duty].

The Department of Defense Financial Management Regulation governs financial management by establishing principles, systems, standards, procedures, and practices necessary to comply with financial management requirements applicable to the Department of Defense.  Volume 7A deals with military pay policies and procedures of the active and Reserve components.  It states, in pertinent part, that a soldier in an AWOL status is not entitled to pay and allowances.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant went AWOL from 29 January 1996 until on or about 28 October 1996 because he did not want to go to Korea.  During this period, the Defense Finance and Accounting Service (DFAS) made twice monthly electronic transfers of pay and allowances to the applicant's personal bank account.  The applicant withdrew each deposit soon after it was made.

2.  When the DFAS was finally notified that the applicant had been in an AWOL status, payments were stopped and collection actions were undertaken.  The debt that the applicant is seeking to have cancelled is the one he incurred when he accepted his pay while in an AWOL status.

3.  When the military court convicted the applicant of larceny, there was no requirement on the court's part to affirm the collection efforts of the DFAS.  The applicant's contention that he does not owe the debt because the court did not specify that he make restitution is not persuasive.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__sac___  __mhm___  __rks___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002066768	
SUFFIX		
RECON		
DATE BOARDED	20020801	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.1000	
2.		
3.		
4.		
5.		
6.